Today’s March for Life is the 46th annual march against the Supreme Court’s outrageous decision in 1973 in Roe v. Wade. Whether the March for Life draws hundreds of thousands of supporters, or tens of thousands, is contested. But either way the March for Life signals the resounding repudiation of the demand by Justices O’Connor, Kennedy, and Souter, in their profoundly confused joint opinion in Planned Parenthood v. Casey (1992), that pro-lifers surrender the battle for legal protection of the lives of unborn human beings (in the joint opinion’s phrasing, that they “end [the] national division by accepting a common mandate [purportedly] rooted in the Constitution”). And the fact that the marchers are disproportionately young (including, of course, lots of courageous young women) makes clear that no such surrender is on the horizon.
Overturning Roe and Casey is a constitutional imperative. As I summed things up in my Senate testimony in 2005:
Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.
The supposed judicial statesmanship of O’Connor, Kennedy, and Souter in Casey has manifestly, and predictably, failed to achieve the surrender they demanded. As Justice Scalia suggested in his dissent in Casey, Chief Justice Taney probably expected that his Dred Scott opinion would resolve, once and for all, the slavery question. But, Scalia continued:
It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved—an issue involving life and death, freedom and subjugation—can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be. Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.